Carter v. State

• Decision Date: 27 June 1944
• Docket Number: 8 Div. 361.
• Citation: 19 So.2d 361,31 Ala.App. 526
• Parties: CARTER v. STATE.
• Court: Alabama Court of Appeals

19 So.2d 361

31 Ala.App. 526

CARTER v. STATE.

8 Div. 361.

Alabama Court of Appeals

June 27, 1944

Rehearing Denied Aug. 22, 1944.

Appeal from Circuit Court, Jackson County; W.J. Haralson judge.

Proctor & Snodgrass, of Scottsboro, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.

CARR, Judge.

Appellant was tried in the Circuit Court of Jackson County, Alabama upon an indictment charging murder in the second degree. He was convicted of manslaughter in the second degree. From the judgment of conviction and sentence rendered, he appeals to this court.

We agree with the Attorney General, in his brief filed in this cause, that "the statement of facts as set forth in appellant's brief is substantially correct in every material respect." The statement follows.

"The testimony offered in behalf of the State and on which the State relied for a conviction of appellant was to the effect that the appellant, James Carter, the deceased man, James J. Smith, and the State's witness, Charlie Smith, were riding in an automobile belonging to the appellant, near the community of Hollywood, Alabama. The only witness who tended in any way to connect the appellant, James Carter, with the death of James J. Smith was the State's witness, Charlie Smith. The witness, Charlie Smith, testified that he and the appellant, Carter, and the deceased man, James J. Smith, were riding in an automobile that belonged to appellant and were coming in the direction of Hollywood, Alabama; that in some manner, the car ran into a ditch and the deceased man, James J., or Jim, Smith, got out of the car to push it out of the ditch. The witness further testified that the appellant soon thereafter got out of the car himself and went back to where James J. Smith was and then came back to the car and got a car crank out of the car and hit the deceased man, James J. Smith, over the head with the car crank, or, as the witness at another point of his testimony said that appellant 'warped (James J. Smith) on the side of the head' with said car crank. There is some testimony in the case to the effect that all three parties were drinking on this occasion, but, as we understand the situation from the testimony, the witness, Charlie Smith, undoubtedly got the best of the other two in the drinking bout as it appears from the evidence that when he was arrested he had 'passed out' in or near a hog pen. According to the testimony of the witness, Smith, there was no trouble whatever between the deceased man and the appellant and if the appellant did strike the deceased man on the head with a car crank as Smith testified, then there is nothing in the testimony to show any excuse or justification for the same. The testimony further shows that the deceased man, James J. Smith, was later found lying in the road close to where the witness Smith testified he was struck with a car crank, and that sometime shortly thereafter he died. The testimony shows that the two Smiths and appellant were together and that the alleged injuries occurred to James J., or Jim, Smith somewhere between 11 and 12 o'clock in the morning, and that he was found lying in the road shortly after noon by Dr. D.W. McCrary, who was also a witness for the State.

"The testimony for appellant is in direct conflict with the testimony given by Charlie Smith for the State. The appellant contended that while it was true that he and Charlie Smith and the decedent, James J. Smith, were riding in his automobile in the Hollywood community on the morning of the day that James J. Smith was injured, he contended and testified that he had no trouble whatever with the deceased man and had never had any trouble with him at any time, but that the decedent Smith got out of the car before the car ever got into the ditch and that there was nothing wrong with Jim Smith, or James J. Smith, the decedent, at the time the appellant last saw him."

With commendable candor, appellant's counsel urges that the prime question involved in this appeal is the refusal of the trial court to grant appellant's motion for a new trial on the ground that the jury was not authorized to find the appellant guilty of manslaughter in the second degree under the evidence in this case. We are therefore requested to so hold as a matter of law. This we cannot do, and we will attempt to state why.

"When the indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony, or a misdemeanor." Code 1940, Tit. 15, § 323. Dennis v. State, 112 Ala. 64, 20 So. 925; Compton v. State, 110 Ala. 24, 20 So. 119; Kelly v. State, 235 Ala. 5, 176 So. 807; Keel v. State, 29 Ala.App. 191, 194 So. 416.

"As described at common law and under statutes substantially declaratory thereof, involuntary manslaughter consists in the killing of another without malice and unintentionally, in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily harm, or in doing some act lawful in itself in an unlawful manner or negligently, or by the negligent omission to perform a legal duty. The unlawfulness of the act in connection with which the killing occurs is the element which distinguishes involuntary manslaughter from a killing excusable as by accident or misfortune. It is difficult to separate sharply an unlawful act from a lawful act done in an unlawful manner or without due caution or circumspection. It is immaterial by what means or methods the offense is committed. " (Emphasis ours.) 40 C.J.S., Homicide, § 55, pp. 918, 919. See also Sawyer v. State, 20 Ala.App. 504, 103 So. 309; Jones v. State, 21 Ala.App. 234, 109 So. 189.

The evidence in the case under consideration is silent as to the size, weight or material of the "automobile crank" alleged to have been used with which to strike the deceased. It was not introduced in evidence and, so far as the...